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Internet Ban during Patel quota agitation upheld by Gujarat HC
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7/17/2019 Internet Ban during Patel quota agitation upheld by Gujarat HC
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C/WPPIL/191/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 191 of 2015
==========================================================
GAURAV SURESHBHAI VYAS....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
==========================================================
Appearance:
MR ASIM PANDYA with MR J S SHAH & MR MANAN V BHATT, ADVOCATE
for Applicant
MS ML SHAH, GOVERNMENT PLEADER for the Opponent(s) No. 1 ,5 & 6==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.JAYANT PATELandHONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 15/09/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE
MR. JAYANT PATEL)
1. The petitioner who is a Law student, claiming to be a public-
spirited person has approached to this Court by invoing !"L
#urisdiction o$ this Court seeing to declare that the action and
the noti$ication at Anne%ure:A issued by the &tate
'overnment(respondent no)* herein o$ blocing(banning access
to Mobile "nternet &ervices during the relevant period as void
ab initio, ultra vires and unconstitutional) The petitioner has
also prayed to issue appropriate writ, permanently restraining
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the respondent-&tate and its o$$icers $rom imposing a complete
or partial ban, blocing access to "nternet Mobile(+roadband
&ervices in the &tate o$ 'u#arat, since as per the petitioner, it is
violative o$ Articles , . and / o$ the Constitution and
conse0uently beyond the powers o$ the &tate 'overnment
under the relevant laws) The petitioner has also prayed $or
additional relie$ to hold that the respondent no) is vicariously
liable and respondent no) * is personally liable $or the
unconstitutional and arbitrary action o$ banning Mobile "nternet
access and $or causing loss as stated in paragraph )1 to the
nation and $urther appropriate directions to sa$eguard to the
$undamental rights are also prayed $or)
/) 2e have heard Mr) Asim &) !andya, learned counsel appearing
with Mr) Manan +hatt and Mr) 3ai &hah, learned counsels
appearing $or the petitioner and we have also heard Ms)
Manisha L) &hah, learned 'overnment !leader, appearing $or
the respondent nos) , 4 and * upon advance copy)
3. The contention raised on behal$ o$ the petitioner was that the
competent authority could not resort to e%ercise o$ power
under &ection o$ the Code o$ Criminal !rocedure, .56
7 herea$ter to be re$erred to as 8 the Code9 and i$ any power
was available, such was only under &ection *.A o$ the
"n$ormation Technology Act, /;;; 7herea$ter to be re$erred to
as 8the Act9) The second contention was that wholesome
e%ercise o$ power under &ection o$ the Code in any case
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was not permissible, because i$ we consider the noti$ication, it
is $or alleged misuse o$ social media) As per the learned
counsel, certain social media sites could be bloced, even i$ the
purpose was to be achieved by e%ercise o$ the power, lie
Twitter,
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law) +ut as per the learned counsel $or the petitioner, in the
absence thereo$, the Court may not proceed on the basis that
restriction o$ $undamental right was valid in law) As regards the
apprehended action on the part o$ the respondent-&tate and its
o$$icials, it was submitted that even i$ there is no actual breach
o$ $undamental right, but i$ there is imminent danger or
apprehension, the Court may entertain the challenge to the
apprehended action also and there$ore, the petition may not be
termed as on hypothesis or surmises) "t was submitted that
there$ore, this Court may inter$ere) The learned counsel relied
upon various decisions o$ the Ape% Court, however, we thin it
appropriate to re$er to those only which as per our view are
relevant $or considering the controversy)
4. On behal$ o$ the respondent-&tate and its o$$icials, Ms) Manisha
L) &hah, the learned 'overnment !leader, by relying upon the
voluminous material contended that there was su$$icient valid
ground $or e%ercise o$ power under &ection o$ the Code) "t
was submitted that had the powers not been e%ercised under
&ection $or blocage o$ internet $acility on mobile phones,
possibly, peace could not have been restored with the other
e$$orts made by the &tate $or maintenance o$ the law and
order) &he submitted that the petitioner is not having all the
details $or e%ercise o$ power and the ground raised that
noti$ication $or blocing o$ internet $acility on mobile phones
$rom /4thAugust /;4 onwards was without there being any
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noti$ication, is not correct) &he submitted that the noti$ication
was already issued and is made part o$ the record which is
tendered be$ore the Court) On the 0uestion o$ law, the learned
'overnment !leader contended that e%ercise o$ power under
&ection o$ the Code is operating $or general control o$ the
situation, more particularly in case o$ rioting, wherein, degree
o$ disturbance o$ the public order will be huge) 2hereas &ection
*.A o$ the Act operates $or certain contingency and $or
blocage o$ certain sites only) "t was submitted that since the
&tate and its competent authority $ound that unless the
blocage o$ the internet $acility on mobile phones is made, the
situation may be worsened or the &tate may not be in a
position to achieve the ob#ect o$ maintaining public tran0uility
and curbing riot, the power under &ection o$ the Code was
e%ercised) The learned 'overnment !leader $urther contended
that it is di$$icult to visuali=e the situation which may happen
on the day o$ >andi ?atra or therea$ter which is stated by the
petitioner) &he submitted that normally such power under
&ection o$ the Code is e%ercised as a last resort or when it
is e%tremely re0uired) On the aspect o$ minimal restriction, the
learned 'overnment !leader submitted that it was not that
internet $acility was completely banned or bloced, but in order
to see that there is internet access available to people
wherever broadband $acility is available or wi-$i $acility is
available, such was not banned and there$ore, she submitted
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that it is not a matter where competent authority e%ercised
power in an arbitrary manner without eeping in view the
minimal restriction on the $undamental rights) &he submitted
that normally, it should be le$t to the sub#ective satis$action on
the ob#ective material by the competent authority $or e%ercise
o$ the power under &ection o$ the Code) &he, there$ore
submitted that the petition may not be entertained by this
Court)
4) At the outset, we may record that since the contention o$ no
power has been canvassed by taing support o$ &ection *.A o$
the Act in contradiction with the provisions o$ &ection o$
the Code, we $ind it appropriate to re$er to reproduce &ection
o$ the Code and &ection *.A o$ the Act, which are as
under:
144. Power to issue order in urgent cases of
nuisance or apprehended danger.--(1) In cases
where, in the opinion of a District Magistrate, a Sub-
divisional Magistrate or any other !ecutive Magistrate
specially e"powered by the State #overn"ent in this
behalf, there is sufficient ground for proceeding under
this section and i""ediate prevention or speedy re"edy
is desirable, such Magistrate "ay, by a written order
stating the "aterial facts of the case and served in the
"anner provided by section 1$%, direct any person to
abstain fro" a certain act or to ta&e certain order with
respect to certain property in his possession or under his
"anage"ent, if such Magistrate considers that such
direction is li&ely to prevent, or tends to prevent,
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obstruction, annoyance or in'ury to any person lawfully
e"ployed, or danger to hu"an life, health or safety, or a
disturbance of the public tranuility, or a riot, or an
affray(*) +n order under this section "ay, in cases of
e"ergency or in cases where the circu"stances do not
ad"it of the serving in due ti"e of a notice upon the
person against who" the order is directed, be passed e!
parte
($) +n order under this section "ay be directed to a
particular individual, or to persons residing in a particular
place or area, or to the public generally when freuenting
or visiting a particular place or area
(%) o order under this section shall re"ain in force for
"ore than two "onths fro" the "a&ing thereof
.rovided that, if the State #overn"ent considers it
necessary so to do for preventing danger to hu"an life,
health or safety or for preventing a riot or any affray, it
"ay, by notification, direct that an order "ade by a
Magistrate under this section shall re"ain in force for
such further period not e!ceeding si! "onths fro" the
date on which the order "ade by the Magistrate would
have, but for such order, e!pired, as it "ay specify in the
said notification
(/) +ny Magistrate "ay, either on his own "otion or on
the application of any person aggrieved, rescind or alter
any order "ade under this section, by hi"self or any
Magistrate subordinate to hi" or by his predecessor-in-
office
(0) he State #overn"ent "ay, either on its own "otion
or on the application of any person aggrieved, rescind or
alter any order "ade by it under the proviso to sub-
section (%)
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(2) 3here an application under sub-section (/), or sub-
section (0) is received, the Magistrate, or the State
#overn"ent, as the case "ay be, shall afford to the
applicant an early opportunity of appearing before hi" orit, either in person or by pleader and showing cause
against the order, and if the Magistrate or the State
#overn"ent, as the case "ay be, re'ects the application
wholly or in part, he or it shall record in writing the
reasons for so doing4
*) The language used under sub-section 7 o$ &ection is 8to
prevent, or tends to prevent, obstruction, annoyance or in#ury
to any person law$ully employed or danger to human li$e,
health or sa$ety, or a disturbance o$ the public tran0uility, or a
riot, or an a$$ray9) As per the a$oresaid provision, power may be
e%ercised i$ any o$ the a$oresaid contingencies occurs)
5) &ection *.A o$ the "n$ormation Technology Act, /;;; reads as
under:-
69A. Power to issue directions for blocking forpublic access of any information through anycomputer resource.-(1) 3here the 5entral #overn"entor any of its officer specially authorised by it in thisbehalf is satisfied that it is necessary or e!pedient so todo, in the interest of sovereignty and integrity of India,
defence of India, security of the State, friendly relationswith foreign States or public order or for preventingincite"ent to the co""ission of any cogni6able offencerelating to above, it "ay sub'ect to the provisions of sub-section (*) for reasons to be recorded in writing, byorder, direct any agency of the #overn"ent orinter"ediary to bloc& for access by the public or cause tobe bloc&ed for access by the public any infor"ationgenerated, trans"itted, received, stored or hosted in anyco"puter resource
(*) he procedure and safeguards sub'ect to which suchbloc&ing for access by the public "ay be carried out,
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shall be such as "ay be prescribed
($) he inter"ediary who fails to co"ply with thedirection issued under sub-section (1) shall be punishedwith an i"prison"ent for a ter" which "ay e!tend to
seven years and shall also be liable to fine4
1) The a$oresaid &ection shows that the situations envisaged are,
8in the interest o$ sovereignty and integrity o$ "ndia, de$ence o$
"ndia, security o$ the &tate, $riendly relations with $oreign &tates
or public order or $or preventing incitement to the commission
o$ any cogni=able o$$ence relating to above9)
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10.On the aspect o$ su$$iciency o$ material to e%ercise power under
&ection o$ the Code, it is hardly re0uired to be stated that
this Court would not be e%ercising the appellate power) +ut the
Court may e%amine i$ the power is e%ercised in arbitrary
manner or there is perverse e%ercise o$ the power without
there being any material whatsoever) The material produced on
behal$ o$ the respondent-&tate and the competent authority,
even i$ considered at the $irst glance, would go to show that
they were germane to e%ercise o$ the power and hence, it could
not be stated that the ob#ective materials were not at all
considered)
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11.On the aspect o$ minimal damage, it does appear that the
competent authority had taen care, namely, o$ blocing o$
internet $acility only on mobile phones and not on broadband
$acility) The attempt made by the learned counsel $or the
petitioner to contend that only social media sites could be
bloced and not complete blocage o$ the internet access
through mobiles, in our view, cannot be countenanced $or two
reasonsB one is that normally, it should be le$t to the authority
to $ind out its own mechanism $or controlling the situation and
the second is that there are number o$ social media sites which
may not be re0uired to be bloced independently or
completely) +ut i$ internet access through mobiles is bloced by
issuing directions to the mobile companies, such may possibly
be more e$$ective approach $ound by the competent authority)
"n any case, it was not complete ban on the internet access, but
in comparison to the access available to internet through
mobile, the same was only prohibited, whereas access to
internet through broadband and wi-$i $acility was permitted or
rather was not bloced)
/) @nder the circumstances, we are not impressed by the
contention that the authorities were not conscious nor were
they completely ignorant o$ the aspect o$ minimal restriction)
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mobiles or may be through wi-$i, the matter might stand on
di$$erent $ooting and di$$erent considerations) +ut such was not
the $act situation)
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2hat will be the situation in $uture and what will be the degree
o$ the disturbance o$ the law and order or what will be the
0uantum and number o$ rioting etc) in a given situation cannot
be visuali=ed on the ground as stated by the learned counsel
$or the petitioner) At this stage, all these 0uestions can only be
said to be in the $ield o$ hypothesis and surmises) 2e do not
see that the basis or the demonstration o$ reasonable
apprehension as sought to be canvassed is su$$icient at this
stage $or us to intervene even be$ore the power is e%ercised)
2e only $ind it appropriate to observe that the competent
authority will only e%ercise power within the limits o$ law on the
basis o$ the ob#ective material and shall not e%ercise power in
arbitrary manner or in perverse manner without there being
any appropriate ob#ective material)
14. Learned counsel $or the petitioner relied on decision in
Maneka Gandhi Vs Union o India !AIR "#$% SC $' to
submit that the Ape% Court held in that case that violation o$
$undamental right under Article .77a o$ the Constitution
could also travel into the realm o$ violation o$ other
$undamental rights lie Articles / and and that principle o$
trinity vis-a-vis en$orcement o$ all the three $undamental rights
was propounded by the Court) "n respect o$ the contention that
powers under &ection o$ the Code could not have been
resorted to, the reliance was made upon the decision o$
+ombay igh Court In (e A(deshi( Phi(o)sha* M+(),an
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! A.I.R. "#- Bo/. -0'1 with the $urther contention that the
+ombay igh Court #udgment is binding on this Court) &imilarly
the reliance was also made upon a &iim igh Court decision
in Go2a34i P(asad Vs S5a5e o Sikki/ !"#%" C(i. LJ 6') "n
order to assert that right to $ree speech and e%pression
guaranteed under Article .77a o$ the Constitution can be
used by the mode o$ "nternet use, he relied on recent decision
o$ the Ape% Court in case o$ Sh(e7a Sin8ha3 Vs Union o
India !90"&: & SCC "'wherein the &upreme Court struc
down &ection **-A o$ the "n$ormation Technology Act as putting
unreasonable restriction on the right to $ree speech) The said
decision was in di$$erent conte%t where vires o$ &ection **-A
was considered by the Ape% Court and it was held that the said
provision was arbitrary and putting e%cessive restrictions on
the en#oyment o$ $undamental right to $ree speech)
15.The oti$ication issued by the Commissioner o$ !olice, City o$
Ahmedabad, in the present case was in the bacground o$ a
speci$ic $act situation which in view o$ the said competent
authority was prone $or aggravation leading to public tran0uility
and public sa$ety and the blocing o$ internet mobile $acility
was considered to be an appropriate action) ?et another
decision in Ra/3i3a Maidan In;iden51 In RE !0"0 9&: SCC
"' was relied on by learned advocate $or the petitioner to
vehemently contend that in that case the &upreme Court came
down heavily on the authorities $or invoing &ection o$ the
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Code) Learned advocate relied on various paragraphs and
attempted to submit that &ection , Cr)!)C) could not be
invoed to smother the en#oyment o$ $undamental right) The
$acts o$ that case were entirely di$$erent where the order was
passed under &ection o$ the Code at )6; p)m) and the
o$$icers o$ police were shown to have unleashed lathi chargeon
the persons and devotees who were sleeping at the Ramlila
Maidan) The &upreme Court $ound that the action o$ the
policemen was brutal and arbitrary) "t was in that bacground
o$ $act situation that the &upreme Court did not approve
issuance o$ order under &ection o$ the Code)
*) "n view o$ the above, we do not $ind any case made out
$or inter$erence) ence, the petition is dismissed)
9JAYANT PATEL1 ACJ.:
9N.V.ANJARIA1 J.:pirzada
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